FCC’s Tyranny of the Minority?

Jeff Jarvis filed a Freedom of Information Act request to see the 159 complaints filed with the FCC concerning Fox’s broadcast of Married by America which led the Commission to levy a $1.2 million fine against Fox for violating indecency standards. Jarvis received a reply from the Commission:

I just received the FCC’s reply with a copy of all the complaints — and a letter explaining that, well, there weren’t 159 after all. William H. Davenport, chief of the FCC’s Investigations and Hearings Divison, admits in his letter that because the complaints were sent to multiple individuals at the FCC, it turns out there actually were only 90 complaints. It gets better: The FCC confesses that they come from only 23 individuals.

These 23 complaints were not all original. In fact, only 3 different forms of letters were sent to the FCC.
Groups like the Parents Television Council make it incredibly easy to file complaints with the FCC about indecent language by using web forms where concerned moralists can complain to the Commission without needing to actually watch the offending broadcast. For example:

These forms make it especially easy to file complaints with the information necessary for the Commission to investigate a complaint. The complaint procedure is described in a 2001 Policy Statement: In the Matter of Industry Guidance On the
Commission’s Case Law Interpreting 18 U.S.C.§ 1464 and Enforcement Policies Regarding Broadcast Indecency
(File No. EB-00-IH-0089, Apr. 6, 2001).

The Commission does not independently monitor broadcasts for indecent material. Its enforcement actions are based on documented complaints of indecent broadcasting received from the public. Given the sensitive nature of these cases and the critical role of context in an indecency determination, it is important that the Commission be afforded as full a record as possible to evaluate allegations of indecent programming. In order for a complaint to be considered, our practice is that it must generally include: (1) a full or partial tape or transcript or significant excerpts of the program;20 (2) the date and time of the broadcast; and (3) the call sign of the station involved. Any tapes or other documentation of the programming supplied by the complainant, of necessity, become part of the Commission’s records and cannot be returned. Documented complaints should be directed to the FCC, Investigations and Hearings Division, Enforcement Bureau, 445 Twelfth Street, S.W., Washington, D.C. 20554.
If a complaint does not contain the supporting material described above, or if it indicates that a broadcast occurred during “safe harbor” hours or the material cited does not fall within the subject matter scope of our indecency definition, it is usually dismissed by a letter to the complainant advising of the deficiency. In many of these cases, the station may not be aware that a complaint has been filed.

If the complaint is valid, the Commission will then evaluate the content of the broadcast, make a decision about whether the content is indecent and levy a fine, if appropriate.
In its crackdown on indecency, the FCC complaint system rewards a small minority of vocal complainers and fails to take into account the opinions of those who approve of and enjoy television programming. The complaint procedure was intended to listen to those individuals who happened to be offended by some indecent programming actually experienced on broadcast. This complaint procedure did not contemplate activist morality patrols hiring staff members to watch potentially offensive programming and draft complaints.
Can the FCC create a better complaint procedure or decency standard? Should the Commission subject sensitive viewers to a tyranny of the majority? Even if broadcast programming is popular, should it still be required to meet some decency standard beyond mere market popularity? Are there any workable alternatives?
One alternative may be to simply create a stricter standard for indecency which broadcasters are less likely to run afoul of and will reduce the chill on speech. No matter what the standard is, some viewers will complain about content that borders on indecency and ask the Commission to act.
Another alternative is to create a threshold requirement where the Commission can only act when the number of complaints reaches a certain percentage of the viewing or listening audience of the program– Howard Stern would have to disgust many more people than a less popular shock jock. The obvious drawback to this approach is that it can create a tyranny of the majority where a minority of viewers who are sensitive of broadcast standards will have no recourse with the FCC for content they find offensive.